Co-authored by Isabel Strahan
KEY TAKE-OUTS:
- The playground rule of “finders keepers, losers weepers” does not apply to items of value in New South Wales.
- If you are found to have appropriated property that is not yours, without taking reasonable measures to return it to its lawful owner, you could be charged with the criminal offence of larceny by finding.
Excitement ensues when you find a lost $20 note on the ground. However, the “finders keepers, losers weepers” rule we all once took as gospel on the playground, does not directly translate into adulthood or the criminal law sphere.
Pursuant to Section 117 of the Crimes Act 1900, in some circumstances you could be charged with the offence of larceny by finding if you are found to have taken possession of lost property. Under the Act, the law expects you to have made a reasonable attempt to return the property to the owner, or alternatively, hand it to the Police.
This offence was dealt with by the High Court of Australia in 1987 in the case of Ilich v The Queen [1987] HCA 1, where the Court held that:
“A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.”
What are the elements of larceny by finding the prosecution must prove?
In order to be convicted of larceny by finding, the Police must prove the following:
- You have appropriated the property, meaning you have taken possession of the property and by doing so, have formed the intention of owning it.
- That the property wasn’t yours.
- You had the intention to permanently deprive the rightful owner of said property.
What are the penalties for larceny by finding?
If found guilty, the maximum penalty is five-year imprisonment. However, the penalty you receive will be dependent on several circumstances including the value of the property, the circumstances regarding how you found the property and if you have a prior criminal history, amongst other things. Also, if the matter is listed in the Local Court of New South Wales, there is a jurisdictional limit of two years imprisonment.
Key test: “Reasonable” steps to reunite the owner with lost property
When assessing whether an act could be considered an offence of larceny, the Prosecution must pay particular attention to the element of fraud or dishonesty. This is determined on a case-by-case basis in relation to whether the accused took “reasonable” steps to reunite the owner with their lost property.
What is considered to be a “reasonable” attempt is dependent on the nature of property and the circumstances under which it was found.
For example, if you found a lost wallet in a restaurant, it would be considered a “reasonable attempt” if you handed the wallet to the restaurant staff.
What are the potential defences for larceny by finding?
So long as it can be proven that you took “reasonable steps” to reunite the owner with their property, or alternatively, the Court deems that locating the owner would be impossible or impractical to do so, this can be used as a defence to the charge.
It is also a defence if one of the abovementioned elements that the Prosecution must prove is not satisfied beyond reasonable doubt.
Next steps and final thoughts…
It is always a good idea to consult with a Lawyer before you endeavour to speak with the Police, so you understand your rights and obligations.
If charged, we recommend seeking legal advice in order to assess the available options and any defences that may be raised before you enter into a plea. Our team of criminal Lawyers will be able to present your case in the best light for the presiding Magistrate.
ABOUT ISABEL STRAHAN:
Isabel joined the Coutts team in January 2022, as a Paralegal working within our Family & Criminal teams. She is currently studying a Bachelor of Laws and Bachelor of Arts, Majoring in International Relations and Minoring in Cultural Studies at the University of Wollongong. It is her dedication and hardworking nature that will see her go far within Coutts.
For further information please don’t hesitate to contact:
Isabel Strahan
Paralegal
info@couttslegal.com.au
1300 268 887
Contact Coutts today.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.
